Bowen and Short

FAMILY COURT OF AUSTRALIA

BOWEN & SHORT

[2017] FamCA 939

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where orders are made permitting the mother to relocate to Canada with the children – Where orders are made for the father to spend holiday time with the children in Canada.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bowen

RESPONDENT:

Mr Short

INDEPENDENT CHILDREN’S LAWYER:

Mary Buchanan

FILE NUMBER:

BRC

3847

2015

DATE DELIVERED:

22 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 and 26 September 2017

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

Legal Aid Queensland

Orders

That all previous parenting Orders are discharged.
That the mother, Ms Bowen, has sole parental responsibility for making decisions about the “major long-term issues” as that term is defined in the Family Law Act 1975 (Cth) (“the Act”) in relation to the children, B born … 2008 and C born … 2010, (“the children”), save for decisions about the children’s family name, the parental responsibility for which shall be shared between the children’s parents.
That when the exercise of her sole parental responsibility, as provided for in paragraph 2 hereof, requires the mother to make a decision about “major long-term issues” in relation to the children, (save for the exclusion from that definition of decisions about the children’s family name as provided by paragraph 2 hereof), the mother shall:
(a)       inform the father in writing of the decision to be made;
(b)       invite written input from the father;
(c)take the father’s input into account when making the decision that is to be made; and
(d)       inform the father in writing of the decision she makes.
That should the sole parental responsibility Order made in paragraph (2) of these parenting Orders be insufficient to satisfy the passport issuing authorities of the United States of America and Canada that the mother has the authority conferred upon her by this Court to apply for passports to issue for each of the children from those authorities respectively without the need to obtain the signature of the father as well, the father, Mr Short, shall forthwith upon request by the mother sign applications for the issue of passports for each of the children by the authorities of either of the United States of America or Canada.
That should the father refuse or neglect to sign an application or applications for the issue of passports for the children by the authorities of the United States of America or Canada within seven (7) days of request by the mother, the Registrar of the Family Court of Australia at Brisbane is appointed pursuant to s 106A of the Act to sign any such application in the father’s name and to do all things necessary to give validity and operation to any such application.
That the children shall live with the mother.
That the children be permitted to leave the Commonwealth of Australia to travel to Canada in the company of the mother as soon as the mother determines she wishes to leave Australia after Friday, 8 December 2017.
That the Court requests that the Australian Federal Police remove the names of the children, B born … 2008 (male) and C born … 2010 (male), from the Family Law Watchlist at all points of international arrivals and departures in Australia.
That the children shall spend time with the father after the mother has relocated with them to Canada as may be agreed in writing between the mother and the father but, in default of agreement, as follows:
(i)For two weeks of the children’s Christmas-New Year school holidays each year;
(ii)For the entirety of the children’s Spring holidays each year but not including the Easter festive days of Good Friday, Easter Saturday, Sunday and Monday if they fall coincidental to the Spring holidays in any year;
(iii)For two weeks in the children’s 2018 Summer holidays;
(iv)For three weeks in the children’s 2019 Summer holidays;
(v)For four weeks in the children’s 2020 Summer holidays and each Summer holidays thereafter;
(vi)For three days and three nights over any weekend outside of school holidays on the giving of at least three weeks’ notice in writing by the father to the mother, with the father to ensure the children attend school on the Friday or Monday of any such weekend, unless by previous agreement in writing with the mother it is agreed that he does not have to;
(vii)All such time to be spent in Canada, and the father is restrained from taking the children outside of that country without the prior written consent of the mother, with the father to advise the mother in writing in advance of each school holiday period during which the children are to spend time with him, of his plans and as to where, more precisely, the children will be spending each of those holidays with him.
That the children shall communicate with the father by telephone and internet video conferencing at such times as may be agreed in writing between the mother and the father and, in default of written agreement, by internet video conferencing as follows:
(i)on one occasion each week; and
(ii)on each of the children’s birthdays; and
(iii)on Father’s Day each year; and
(iv)on the father’s birthday each year; and
(v)on Thanksgiving Day each year.
That when the children are spending time during school holidays with the father, the children shall communicate with the mother by telephone and internet video conferencing at such times as may be agreed in writing between the mother and the father and, in default of written agreement, by internet video conferencing as follows:
(i)on one occasion each week they are with the father; and
(ii)if any of these days fall whilst the children are in the father’s care, on each of the children’s birthdays, the mother’s birthday, Mother’s Day and Christmas Day.
That the mother and the father shall communicate with each other as they might agree in writing and, in default of such agreement in writing, then in writing by email, text message or ordinary post.
That the mother shall provide the father with copies of any school reports issued by the school or schools attended by the children as and when such reports are made available to her by the school or schools.
That the Independent Children’s Lawyer is discharged from the moment the mother and children depart Australia for Canada.
That the mother is authorised to show a copy of these parenting Orders to the passport issuing authorities of the United States of America and/or Canada and to the administration of any Canadian school the children or either of them attends.
That the mother and the father are each authorised by this Court to show a copy of these parenting Orders and the written reasons for judgment accompanying them to any lawyer acting for her or him in any place outside Australia and to any Court exercising jurisdiction over these children in any place outside Australia.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Short has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3847 of 2015

Ms Bowen

Applicant

And

Mr Short

Respondent

REASONS FOR JUDGMENT

C Short and his brother, B, are 7 and 9 years old respectively. Their parents, who were married in early 2008, separated in August 2014 and have not been able to agree on parenting arrangements for the boys since then. They have been in dispute in the family Courts of this country since April 2015.
The parenting dispute has significant international issues, not the least of which is the Court being asked to let the boys move to Canada with the mother to live with her there or to have them go and live with their father in the US, with the real prospect of them then going to live in Africa sometime thereafter and later to attend boarding school in Africa.

Some Background

The mother, a Canadian citizen, was born in 1979 and is 38 years of age. The father, an American citizen, was born in 1970 and is 47 years of age. The former couple commenced living together in June 2007, married in 2008, and separated in 2014.
The mother was born in the Canadian Province D into a farming family, one of seven children. When she was 10 years of age her mother took her and an older sister to live in a town where she could concentrate on her involvement in competitive figure ice skating. That was apparently a separation of her parents as well.
She completed year 12 of high school and moved to City E, Province F, where she did some studies before withdrawing and taking up employment in various fields.
Although a citizen of the USA, the father identifies as an African. He was born in Country G and lived there for five years. He is one of five children born to his parents, though three of the five are now sadly deceased. When he was about 5 years of age he moved to live in Country H with his paternal grandmother. His father was involved in Country G politics and stayed behind during a period of immense political and social upheaval in that country. In 1979, his father left Country G and eventually settled in the USA. From the age of 9 until he was 17, the father attended boarding school in Country H. He still has fond memories of that time. Before he finished high school, he left and travelled to the USA to live with his father, finishing his last year of high school there before joining the US Army. His army service was in a field artillery unit, principally in the Arctic (State J) for about three years. He then attended and graduated with a degree from a university in State K.
The father then worked in various occupations before returning to Africa where he bought a property in Country L. In or around 2000, the father went back to Country G, to assist his father, who had returned to the family farm in that country. The father worked with his father there until about 2006, through extraordinary difficulties related to the ongoing security and safety problems in that country.
In 2006, apparently with the intention of finding a partner with whom he could have children, the father returned to the USA and bought a house in State M and established a small business there. That same year, he and the mother met through an internet dating website and began communicating before meeting each other in person in 2007. The mother moved to State M and they commenced cohabitation in June that year. She was pregnant by October that year.
In January 2009, the couple and their first son, B, moved to Canada to live. They purchased a small farm in Province D. In 2010, their second son, C, was born. In October 2011, they left Canada and travelled to Country L where they remained for only three months before they moved to Australia, after the father secured employment in N Town of Queensland.
Both the mother and the father secured permanent residency visa status in Australia in August 2012 and then soon after, the father lost his employment. He established his own consultancy business then. It is undisputed that he travelled fairly regularly for this business, including sometimes for up to a week, or two, or even several weeks at a time.
The mother alleges that the father was abusive of her in the relationship, sometimes physically, but also verbally and emotionally. She said he acted in a controlling and coercive manner towards her and that she often submitted to his will so as to avoid conflict in front of the two little boys.
The mother separated from him in August 2014 and in September that year she took the two boys and returned to Canada. There is evidence that the father travelled there too, with a view to reconciling their relationship, but soon returned alone to Australia where he began to engage the provisions of the Hague Convention (on the Civil Aspects of International Child Abduction) to seek to compel the return of the boys to Australia. The mother obtained legal advice in Canada and voluntarily returned to Australia with the boys and went back to N Town.
Upon their arrival back in Australia, the father began spending regular time with the boys, but when the mother formed a new relationship in 2015, relations between the father and the mother deteriorated further. Both parties involved the police service in their dispute and the mother obtained a family violence protection order against the father. At some point around this time, the father held onto the children at the end of one of their visits with him and the mother only got them back after commencing these parenting orders proceedings in the Court. The father responded in the proceedings, seeking orders that the children live with him.
Sometime thereafter, the father took employment in O Town, about three hours’ drive west of P Town in north Queensland. The father seemingly had an expectation that the mother should also move with the children to live in O Town so that they could be close enough for the children to spend significant and substantial amounts of time with him. The mother did not agree to do that and suggested that it might be better for the father to obtain employment in N Town so as to be close to her and the boys there.
The father did not move back down to N Town and orders were made that provided for the boys to go up to north Queensland to spend time with the father in the school holidays.
Conflict between the former couple continued to escalate and the mother made a number of complaints to the police of the father breaching the family violence protection order. He was never charged with breaching the orders but in June 2016, after having lost his employment In O Town, the father left Australia and travelled back to the USA to live. He firstly went to live with his sister, a veterinary surgeon, in State Q. Several months later, he moved to State R. He has been living on a property in S Town, a rural area just over an hour’s drive to the north-east of City T, in Southern State R.
Between June 2016 and September this year, the father did not and would not return to Australia. He maintained communication with the boys through video conferencing using the Skype internet platform. That was not without its difficulties.
The father maintained that his decision not to return to Australia in that period was necessary as he feared being charged with and convicted of a breach of the family violence order and sentenced to a term of imprisonment, such that his ability to travel internationally would be significantly impaired, thus placing his ability to earn an income in serious jeopardy.
At a Trial Management Event, when I was making directions to list and prepare the proceedings for trial, I informed the father of what I had seen in the records of the Queensland Police Service that had been produced pursuant to subpoena. I told him that I did not expect that he would be arrested and charged with a breach of the family violence order on a return to Australia. Nevertheless, the trial was readied on the basis that the father would appear by video link from State R. That is what he said he intended to do.
At a subsequent Trial Management Event, the father informed the Court that he had checked with the Queensland Police Service and had satisfied himself that he could actually return to Australia for the trial. Furthermore, although he had not spent any physical time with the two boys since June 2016, he made it clear that he expected to spend time with the boys during the first week of the September school holidays, just prior to the trial. The mother agreed and did not oppose that at all. She told the Court and the father she just wanted to know where the father would be taking the boys for that time. He told the Court and the mother that he would be taking them to Longreach in mid-western Queensland as he wanted to show them “the desert” and take them “looking for dinosaurs”.
The trial took place before me over two days in late September this year. The father appeared without legal representation. The mother appeared without legal representation. The Court was greatly assisted by an Independent Children’s Lawyer and experienced counsel who appeared for that ICL. The Court was also assisted by family reports written over the course of the last 18 months by experienced social worker and report writer, Mr W.

The Parents’ Competing Proposals for Parenting Orders

The mother wishes to relocate to Canada with the children. She has wanted to do that since she commenced these proceedings in 2015. The father has refused to permit that whilst these competing applications were pending, although he does not want orders that keep the children in Australia.
Earlier this year, the matter came before me on an interim application brought by the mother seeking permission to travel back to Canada temporarily to visit family. Even that was opposed by the father. When I heard that, I determined it most appropriate to list the matter for a final determination rather than to just determine an interim application and leave the competing final parenting orders applications pending.
The father wants parenting orders that give him sole parental responsibility for the two boys and for them to live with him. At least in my view, his intentions in respect of where he would live with them seemed to change during the lead up to the trial. He is reported by the family report writer in his updating report written earlier this year, to have stated an intention to move back to Country L in Africa to live on a property he says he still owns there and there to prepare the boys for attendance at the same boarding school he attended in Country H when they reach the appropriate age.
By the time he filed his trial affidavit though, in early August, he said he had recently formed a new relationship with a young woman, Ms U, that he hoped would be a permanent relationship and that he was looking around for a property near the property where he is currently working in southern State R, on which he intended to build his own home and a couple of other homes that he would want to be the boys’ homes as they grew into adulthood.
Accordingly, his position at trial was that he anticipated staying in the USA and having the boys live with him there at least until they reached high school age, at which point he still hoped they might be accepted into the boarding school he went to in Country H.
The father told the Court that if the boys lived with him he would let the mother have as much time with them as she wanted. He suggested that it would be best, in that respect, if she changed her mind about living in Canada and actually moved to live in State R near him and the boys. He even said that if she did that he would consider letting the boys live with her half the time in an equal shared parenting arrangement.

It is worth remarking at this point that such a position does not sit very well with his assertions that the mother suffers from a mental health problem that impact upon her capacity to care appropriately for the boys, assertions he has been consistently making since these proceedings were commenced. The family report writer reported the father making that assertion to him during interviews in the preparation of the report and, indeed, it was a position the father maintained up to and during the trial.
It is also worth remarking that the mother did not accept that she could lawfully move from Canada to live in State R in any event. She actually asserted that she had no lawful right to do so, whilst the father asserted that she did or could at least obtain that right. Neither of them produced any evidence upon which I could reliably make a factual determination about this, each simply asking me to accept their assertions as correct. In any event, I accept that the mother does not want to live in State R and I would make no orders that would seek to make her do so.
The mother seeks sole parental responsibility for the two boys and for them to live with her in the town of V Town, located 11 km west of City F, the capital of the Canadian Provence of F. V Town has a population of 34,000 people. The mother’s sister lives there with her husband and their family. The maternal grandfather and another of the mother’s sisters live in City F. The mother says that the boys have nine cousins who live in V Town and City F who are between 9 and 34 years of age. The mother and the boys previously lived in V Town for approximately three months when they returned to Canada in 2014, when they were 6 and 3 years of age respectively, and the mother lived in City F for some years as a younger woman.
The mother proposes moving into a rental home and sending the boys to one of V Town’s public schools if she is permitted to move there with them. She maintains she has a capacity to work for a company in Provence F. Indeed, she gave evidence that she has been working for that company, albeit remotely, whilst living in Australia in recent times. She apparently also has begun receiving some dividends from the Canadian family company in which she owns shares.
Although the father challenged the mother’s evidence about her work and maintained that the mother fabricated that evidence and was lying about it, he adduced no credible evidence to refute it, nor did his cross-examination of the mother, in my judgment, discredit her evidence about this. Indeed, when called upon to produce to the Court, after the overnight break, a piece of her work, she did produce an email document as proof.
I accept that she has been doing some work on a remote basis for a Canadian company and that she has expectations that she will continue to do such work if she returns to Canada to live.
The mother proposes that the boys spend time with their father for two weeks over the “Christmas period”, for two weeks during the northern summer holidays, increasing to three weeks in 2020. She also proposes that they can spend time with him for “any long weekend in Canada” with two weeks’ notice in writing. She did not propose any arrangements involving the boys travelling to State R to spend time with the father. She expressed fear that if she sent them to spend time with the father in the USA that he would take them from that country to Country L in Africa from where she would not be able to secure their return.
I accept the absolute reasonableness of the mother’s desire to return to F, Canada to live. She is Canadian. She grew up in Canada. She has immediate family living there. She has been restrained in Australian longer than she wanted to be, simply by the fact that the father has had these proceedings on foot and she has been prevented from taking the boys out of Australia whilst they have remained pending, principally as the boys do not have valid current passports, even though the father himself has long left Australia and remained away, making a new life for himself in the United States of America.
Frankly, unrepresented as he was, the father said many things in the course of the lead up to the trial and during the trial that did not assist his case and actually muddied the waters for him. For example, he spoke of having an intention to invoke the Hague Abduction Convention again and to seek the assistance of the US State Department in recovering the boys in the event that this Court ordered that they could be taken by the mother to Canada. Although he expressed confidence that he knew what he was talking about, I respectfully have no understanding of how the Convention could be invoked by him in such circumstances. He also spoke of an intention to make representations to the US State Department to encourage the US Government not to issue a passport for the eldest boy (who is a US citizen, having been born in that country) even if this Court’s orders expressly permitted the mother to apply to the US Government for a passport for the boy and to take him to live with her in Canada.
Clearly, this Court’s jurisdiction to make parenting orders, being properly invoked, empowers the Court to make orders that permit one of the parents to remove the children from Australia and to take them to Canada or the USA in the first instance. However, once outside the reach of this Court, orders made by this Court purporting to regulate parenting arrangements such as who exercises parental responsibility, where the children live and go to school and how much time they spend with the other parent and how and when they communicate with the other parent will likely have doubtful enforceability, in circumstances where neither parent and none of the children live in Australia.
There was absolutely no evidence adduced in this case as to Canadian law or United States or State R law and the capacity for the parties to register this Court’s orders with a Canadian court or a US court or to have orders in the same terms made in a court in either of those countries that would have legal force and effect as between the parties. In the absence of any such expert evidence, I do nevertheless observe that Australia, Canada and the United States are all signatories to the Hague Convention of 19 October, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, though neither Canada nor the United States have ratified or acceded to the Convention notwithstanding having already signed it. Accordingly, it has not entered into force in those countries yet.
Had those countries taken the necessary steps for that Convention to enter into force domestically, both parents would have the right to apply in Canada or the USA for the order of this Court to be declared enforceable there or registered for the purpose of enforcement there. Once an order of this Court has been declared enforceable or registered for enforcement in another country in which the Convention is in force, enforcement should take place in that other country in accordance with its law and to the extent provided by such law, taking into consideration the best interests of the child.[1] However, that is apparently unavailable to both parties in this case where neither Canada nor the USA have taken the necessary steps to bring the Convention each country has signed into force domestically.
[1]See the Revised draft Practical Handbook on the operation of the 1996 Hague Protection of Children Convention (Prel. Doc. No 4 of May 2011) Paragraph 10.12 on page 67 to be found at
Accordingly, as I have said already, the parenting orders I make in this matter are unlikely to be enforceable by either parent once the children are in North America unless one or both parents goes to a court and either causes this Court’s orders to be registered and recognised there pursuant to domestic law or obtains their own domestically enforceable orders from a Canadian court if the children are in Canada or a State R court if the children are in State R.
The determinations to be made in the proceedings are, consequently, tolerably clear. In addition to determining who should have parental responsibility for the boys, the Court must determine whether parenting orders be made that permit the mother to move with the boys to Province F, Canada or rather whether orders should be made placing them in the care of their father, permitting him to take them from Australia to live in southern State R, USA.
In addition, as passports will need to be acquired for the boys to facilitate their travel, orders that appropriately facilitate that will need to be made and, though potentially unenforceable in the country they move to, I am nevertheless of the view that orders providing for the children to spend time and communicate with the parent who they do not leave Australia with should also be made, if not as an indicator to the Courts of the country they go to live in as to what this Court considered appropriate, then at least as an indicator to the parents themselves.

By what Principles are these matters to be determined by this Court?

Of course, each of those things needed to be decided is legitimately the subject matter of parenting orders as defined in s 64B of the Family Law Act 1975 (“the Act”). The Court may, subject to the presumption of equal shared parental responsibility contained in s 61DA, make such parenting order as it thinks proper (s 65D). In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration (s 60CA) and in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3) of s 60CC (s 60CC(1)).
Those matters include two primary considerations – the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence – the latter of which is to be given greater weight (s 60CC (2) and (2A)). They also include a long list of additional considerations (s 60CC(3)) the last of which is the very broad “any other fact or circumstance that the court thinks is relevant” (s 60CC(3)(m)).
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s 61DA(1)). Parental responsibility, in relation to a child, means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). Yet, the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s 61DA(2)) and it may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared responsibility for the child (s 61DA(4)).
As for being satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared responsibility for the child, it is relevant to note that where an order is made for two or more persons to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the order is taken to require the decision to be made jointly by those persons after consultation with the other in relation to the decision to be made and genuine effort to come to that joint decision (s 65DAC).

Does the presumption apply in this case?

There was no dispute that on 29 June 2015 there was a protection order made in favour of the mother by a Queensland Magistrate under the Domestic and Family Violence Protection Act 2012. Pursuant to s 37(1)(b) of that Act, a protection order may only be made if, amongst other things, the court is satisfied that the Respondent has committed domestic violence against the aggrieved. The order was not made with the consent of the Respondent, without any admissions by him.
This Court may adopt any finding, decision or judgment of a Queensland Magistrates Court (s 69ZX(3)(b) of the Act). The definition of “domestic violence” in that Queensland Act (s 8) and the definition of “family violence” in the Act (s 4AB) are such that I am satisfied that a finding that the father committed domestic violence against the aggrieved person (who was the mother) means that he has been found to have done something that also constitutes “family violence” under the Act. Accordingly, I am satisfied that the presumption is rebutted.
Neither party asked the Court for an equal shared parental responsibility order. However, satisfied that the presumption is rebutted, would it nevertheless be in the boys’ best interests to make an equal shared parental responsibility order. Save for allocating parental responsibility for making decisions about changing the boys’ family names, I do not consider that it would be.

Why would it not be in the best interests of the boys to order their parents to share parental responsibility?

The evidence in this matter, the cross-examination of the mother by the father and the submissions of the father satisfied me that these two parents do not have the capacity to jointly reach child-focused decisions about the major long-term issues in the boys’ lives through consultation and genuine effort as s 65DAC mandates if parental responsibility for the boys was shared by order.
The father gave me the impression that he is a very strong-willed, self-focused man who has strong opinions on almost every subject, with little flexibility and willingness or capacity for compromise. I am also satisfied that he has little, if any, respect for the mother’s capacity for independent decision making and no willingness to discuss matters pertaining to parenting the boys with the mother in a way that would not ultimately degenerate into argument and abuse of her. I am completely satisfied that any order sharing parental responsibility for important decisions about major long-term issues in the boys’ lives that obligated consultation and joint decision making would be contrary to the boys’ best interests rather than conducive to their advancement.
I will not make an order that parental responsibility for these boys is shared, save with respect to decisions about their family name. Their family name, given to them by the apparent agreement of their parents at their birth, is not something that one parent should now have the sole ability to change at will.

Who should the boys live with?

I make this decision satisfied that if I order that the boys live with their mother, they may not get to spend much time with their father through a combination of factors. Notwithstanding the submissions of the father to the contrary, I do not consider it is the mother’s attitude to furthering the boys’ relationship with their father that is foremost amongst those factors.
I am satisfied the father would not move to live in Canada. Indeed, I am not sure of his legal right to do so, but I accept that he does not want to and that he will not. I am also satisfied that the mother will not voluntarily permit the boys to travel to State R to spend time with the father there without satisfaction that their living arrangements with her would not be jeopardised by the father being able to get away with not returning them to her or even removing them from the USA and taking them to Africa. I do not accept that the mother would not do her best to promote the relationship between the boys and their father, within the boundaries of being completely satisfied about the security of her own relationship with them. I am also satisfied that her concerns about the security of their living arrangements are reasonable in all the circumstances.
The evidence satisfies me that the mother has indeed facilitated video conferencing communication between the father and the boys since those arrangements commenced, and, particularly, since the father returned to the USA in 2016. Her actions, in sometime causing such video conferencing to be cut off, I accept have been in response to the father raising and talking about inappropriate adult topics during such calls. Her readiness to allow the boys to go on a holiday with the father on his return to Australia in September this year, at fairly short notice, in circumstances where he had stayed out of Australia for over a year, also satisfied me that she is not maliciously preventing the boys from maintaining and developing further their relationships with the father.
I am also satisfied that the father’s commitment to spending regular and consistent time with the boys if they are not actually living with him is questionable and concerning. So much was, in my judgment, demonstrated by his departure from Australia in 2016 and refusal to return to spend any time with the boys for over a year for reasons which I regard simply as spurious. It is true that he maintained regular contact with them by internet video conferencing whilst away but I do not accept the asserted reasonableness of his decision to leave and remain away from Australia. His return to Australia for the trial fortifies me in reaching that position.
I make the decision about where the boys should live equally satisfied that if I order that the boys live with the father that they will not get to spend very much time with their mother. I do not consider that the mother would move to State R, be it because she is not lawfully able to or simply because she chooses to live in Canada, her country of origin, where she has family, friends and support, rather than to move to America to live near the father where her life would continue to be subject to the difficulty of having to regularly deal with and co-parent with the father without any of that other support around her.
I am also satisfied that despite the father’s strongly expressed assertions that he would let the mother spend as much time with the children as she wished, that would simply not be a reality. In fact, I am satisfied that if the children were to live with the father that the mother would face enormous difficulty getting to spend time with the children other than on terms totally dictated to her by the father or as ordered by a Court that exercised jurisdiction over the father and the children at the time. If the father were to be able to take the boys to Africa, as he quite clearly said was a longer-term desire of his, I consider the mother might not actually get to see them again. I have little doubt that he would take them to Africa if he could, whether the mother agreed with that or not.
Satisfied as to those matters, I also consider the many matters that I must to determine which of the alternative proposed principal living arrangements is in the best interests of these boys.
I am satisfied that the boys are firmly attached to the mother. That attachment is grounded, for both boys, in having lived with her for virtually all of their lives, experiencing her parental love, care and guidance. The presence of their mother in their relatively short lives in which they have already experienced numerous changes of home and community as well as a number of intercontinental moves, remains as one of the only day to day constants. On the other hand, though I am satisfied they love their father and have attachments to him as well, I am just not satisfied that those attachments are of the same quality and strength as those with their mother. That is unsurprising given that for more than a year before September this year, the only contact they had with their father was via internet video conference calling and that before that, for some time, their father was living three hours west of P Town whilst they lived in N Town with their mother. They saw him only intermittently then. Even when their parents lived together and the father was working in establishing and growing his own consultancy business, by his own admission, he was travelling away from home for days, sometimes weeks at a time, leaving the boys at home in the sole care of their mother.

I am also satisfied that for the few years that the mother and the father lived in an intact marriage and the father was not working away from home, that they arranged their family and parental responsibilities in typically traditional, gender-based ways with the mother principally caring for the home and the boys whilst the father worked. That is not to say that the father did not co-parent the boys, but I accept the reality of the mother’s undertaking the principal parenting role during most of their marriage, as well as since their separation.
The impact on at least one of the boys of the father’s decision to leave and remain away from Australia for over a year can be seen in some evidence given by the father at the trial. He had just spent the first week of the September school holidays with the boys. He said:
I’ve just had the most heart-wrenching eight days with my, with my boys, it took until the final night before [B] would, he rolled over and asked me to tickle his back, something I’ve done since he was a baby, and he, he, it took seven nights where he, where he was a stranger to me and on the last night he finally rolled over and you know lifted up his shirt and said “Dad, please can you tickle my back”.
The father also told the Court that B would often turn his back on him during the internet video conferencing calls during this time when the father was in the USA and remaining away from Australia. Whilst the father valiantly attributed that to the pain that B was going through because he was missing the father, I am more inclined to think it was due to the anger and hurt the child was expressing at his father’s decision to leave the country and stay away, and the fact that he told the boys it was their mother’s fault and responsibility that he was not able to spend time with them, something I am satisfied the boys did not truly accept. The mother told the Court, and I accept it as fact, that the father had told the boys at around the time he left to go back to the USA that he would not see them again until they were adults.
Perhaps demonstrative of the father’s apparent lack of insight into what it is that might explain the boy’s behaviour was his submission at the end of the trial that the boy’s behaviour is actually the direct result of a “dysfunctional family court system that kept us apart for so long” and his added comment that he does not hold any hope about the system “becoming functional again.”
In any event, the family report writer, Mr W, who saw the children and the mother in person and the father via internet video conferencing in March this year, expressed the opinion that both boys seem to enjoy positive relationships with both of their parents. He noted that B told him that he would like the whole family to be together but that if he could only live with one of his parents “it would be my Mom”. The younger boy, C, is reported to have said that he would prefer to live with both parents. Neither is reported to have said that he would prefer to live with his father, though I acknowledge that neither is really old enough to fully understand the significance of these decisions and that whilst some weight should be given to B’s expressed preference it could not be determinative in itself.
I am quite satisfied that a separation of the boys from their mother that would result if the Court permitted them to go to State R to live with the father would cause them significant and lasting emotional distress and would have a greater detrimental impact upon them emotionally than an order that effectively provides for the continuation of their current parental care arrangements by permitting the mother to take them to live with her in Canada and to see their father by video conferencing and, intermittently, in person in Canada.
The father sought, with persistence, to persuade the Court that the boys’ best interests would be served by being moved from their mother’s care to his care because of asserted deficiencies in her care of them and asserted comparative strengths in what he can offer in terms of care for them.
Notably, he confidently maintained that he is a far more intelligent person than the mother, actually asserting, without having adduced any evidence in support, that he has a higher IQ than the mother and that the boys have “inherited” his intellect. He asserted, effectively, that the boys would be better off intellectually and educationally if they were moved to his care and that they would be given a far greater breadth of practical and social worldly experiences by him than by remaining in their mother’s principal care. He also maintained that he has a far greater commitment to the pursuit of excellence in their education than their mother has.
The father also sought to present a case that he is a law abiding citizen who has served his country by doing some years of military service, whereas the mother is a person with little respect for the law who has not served her country and has no history of service in the military in her family.
In this respect, the mother readily admitted occasionally using the illegal drug, cannabis or marijuana, as a relaxant to help her cope with anxiety. She told the Court she first used it when she was about 22 years of age. She agreed that she knew it was an illegal drug then when she first used it in Canada and she knows it is illegal now in Australia.
The father asked the mother no questions about whether she smokes marijuana around the boys. He stopped asking her about it after she agreed that she used it and knew it was illegal to use it. I can make no findings that her use of cannabis, apart from demonstrating a disregard for the laws that make it illegal to use that drug, has any direct adverse impact upon the boys themselves or any adverse impact upon her parenting of the boys. The disregard for the law that the mother’s admissions demonstrate does not persuade me that the boys would, for that matter alone, be better parented by the father.
In my judgment, the most concerning matter raised by the father actually supported by the evidence in this case is that pertaining to the attendance of the two boys at school over the last two years.
In the second semester of 2015, only the oldest boy, B, was attending school at the local State School near where they live. He was absent on 7 days that semester. All were recorded by the school as explained absences. He was absent on 14 days in the first semester of 2016 and one of those days of absence was recorded as unexplained. In the second semester of 2016, B had 15 days of recorded and explained absence. In the first semester of this year, B had 17.5 days of recorded and explained absence from school. In the first half of the second semester this year, B’s recorded and explained absences from school increased to 20 days. That is almost 15 weeks over 2 years.
The youngest boy, C, started Prep in 2016. He had 27 recorded and explained absences in the first semester of that year, 26 recorded and explained absences in the second semester of that year, 31.5 recorded and explained absences in the first semester of 2017 and 22.5 days of recorded and explained absences in the first half of the second semester of 2017. That is 21weeks and 2 days of school missed in less than two years.
There can be no mistake about it. That is a lot of school missed by both boys over the last two years. It is troublesome. The mother asserted the boys, particularly C, experienced a lot of sickness that kept them away from school. C’s school reports raised though, and the oral evidence of the mother confirmed, that C has also been having measurable behavioural troubles at school that, in my judgment, have probably also seriously impacted upon his school attendance.
It is, on the evidence, impossible for me to determine exactly where C’s behavioural problems originate, but experience in this jurisdiction and the evidence I have seen and heard in this case, leads me to strongly suspect that those difficulties may be C’s response to his exposure to the conflict between his parents and, in the last year, the complete physical absence of his father from his life.
The school reports adduced into evidence did reflect the school administration’s opinion that C’s behaviour was slowly improving and I got every sense that the mother did understand how serious an issue it was for the boys, particularly C, to miss so much school. Nevertheless, I was still left with a lingering concern about the strength of the mother’s commitment to compulsory attendance at school.
The father, not unreasonably, pointed to this history and was critical of the mother for it. However, there was evidence of his engagement with the mother and the administration of the school about matters relating to the boys and this parenting dispute, through email communications, that did not impress me. His email communications were rude, arrogant and disrespectful. They did not display the sensitivity that I consider the circumstances more appropriately warranted. He inappropriately involved the school’s administration in some of the worst aspects of his conflict with the mother, such as raising his totally unsupported allegations that the mother has a mental illness. Then he complained that the school was demonstrating bias towards the mother – the parent with day to day care of the boys.
It is one thing for me to find, as the father urged me to, that he might more diligently ensure that the boys attend school every day, but it is another for me to find that he is sensitive to their emotional needs and their need for conflict free parenting, so that they feel well and happy enough to attend school and to socialise appropriately with their peers. In the circumstances of this case, I simply could not say that I am satisfied of that. Equally, I do not consider that a decision to send these two boys off to boarding school in Country H a little later in their lives would be conducive to their development into well-balanced adults, against the backdrop of the parental conflict in this case.
Nevertheless, the father did persuade me that he has much to offer the boys in terms of his parenting. He asserts a love of nature and animals and a desire to impart knowledge and experience about these things to the boys. He asserts a love of technology and an interest as well as skills in manual work and craftsmanship. He asserts the boys like these things, too. These are all things that the boys would, no doubt, enjoy in the father’s company. It is a credit to the father that he wishes to impart his interests, knowledge and experience in these areas to the boys. I am not satisfied, however, that they need to live with him all the time to gain the benefit of his knowledge and experience in these matters.
The father brought his 28 year old girlfriend, Ms U, to Australia with him for the holidays with the boys and the trial. He did not let the mother know that he was changing plans as to the holiday destination from those that he had mentioned in Court at the Trial Management Event and he did not let her know where they were going to be on those holidays. Interestingly, although the father told the Court that he and Ms U had been in a relationship for four months by the time of the trial and that they planned a long-term relationship, no affidavit by Ms U was filed and relied upon and there was no application for her to give evidence. The Court got to see her sitting in the back of the Court during the two days of the trial, but did not get to assess her in any way so as to be able to give some more thoughtful consideration to her taking on the role of step-mother to these children, as effectively proposed on the father’s case. The father did tell the Court that Ms U does not have paid employment, although she does some part time work. It is acknowledged though that the mother did not advance any evidence or make any submissions that the boys had not got on with Ms U during their holiday just before the trial. Nevertheless, she is very much an unknown participant in the proposed parenting of the boys, and the impact of her involvement on the well-being of the boys is impossible to predict, particularly if they were to be placed in the father’s full-time care.
The evidence also established that the father did not have a great history of reliably supporting his children financially through the payment of child support since separation from the mother. There was no apparent dispute that he has not paid the mother any child support since around April 2016 and that prior to that he was often late and inconsistent in making the monthly payments of only $189 per month; a relatively small contribution towards the costs of adequately supporting two growing boys. This history reflects poorly on his commitment to the obligations of financially supporting his children.
As for his capacity to support the boys if they were to go and live with him, the only evidence about that was the father’s evidence that he has been receiving a Veterans’ Affairs benefit of US$1,700 per month that he said is about to increase to US$1800 per month. He asserts that he receives that for a disability he suffers as a result of his military service. He said he suffered frostbite serving in the Arctic, though did not really elaborate on how that incapacitates him now. His assertion was that he has only recently began receiving that, thus explaining why he had not been paying child support, although that does not explain failure to pay any since he began receiving that benefit.
Though cross-examined by the father with some vigour, Mr W did not resile from the opinion he had expressed in his family reports that the boys should continue to live with the mother. Neither, in my opinion, did the father discredit Mr W, despite having him accept that he was mistaken as to the length of time it would take to travel from State R to City F and having him concede that he was originally from Canada himself. I was satisfied with the soundness of Mr W’s consideration of the matter and the basis for the opinions he expressed.
I am also satisfied that during their relationship and since their separation that the father sought to subject the mother to his control. The mother presented as somewhat anxious, timid and reticent in personality, quite a contrast to the extremely confident, highly opinionated and determined father. I am satisfied that the mother fears interaction with the father, particularly for the intimidation and control that she is subjected to in such interactions. I am also satisfied that the same personality traits of the father would be brought to bear in his relationship with his young current partner and in his relationships with his boys. I am not satisfied that subjecting the boys to that on a full-time basis without the regular moderating influence of their mother to counter-balance would be in their best interests.

The Determination

At the end of the trial and my consideration of the evidence with regard to the matters set out in s 60CC(2),(2A) and (3) of the Act, I am ultimately satisfied that the boys should continue to live in the principal care of their mother and to that end, that she should be permitted to apply for and obtain passports for them from the US and Canadian Governments and to leave Australia and return to live with the boys in Canada.
I am also satisfied that it is the best interests of the boys, given that this Court’s orders will permit them to be living with their mother, that she be given sole parental responsibility for the decisions about major long-term issues in relation to the boys (as the term “major long term issues” is defined in s.4 of the Act) save for decisions about changing their family name. Further, I consider that the father has sufficient interest in the welfare of the boys that the exercise of sole parental responsibility by the mother should be conditioned upon first seeking views from the father as to how proposed decisions about major long-term issues should be made and considering any that he proffers in response.
My orders will permit the mother to take the boys from Australia when she elects as soon as that is possible having regard to the procurement of passports for them, provided that is only after the boys current Australian school year is completed, presumably in early December this year.
As for orders providing for the boys to spend time with the father and to communicate with him, I am satisfied that ordering that the mother send the boys to spend time with the father in the USA against her wishes exposes them to an unacceptable risk of being retained in the USA by the father or even taken to Africa by the father and not returned to their mother in Canada.
In his submissions at the end of the trial, the father urged me to think very carefully about making an order that prevents him from taking his boys to Africa. In doing so, he said something like:
technically, I could go on the run and stay one step ahead of the law
but then he went on to assert that he would have no ability at all to hide out in Country L because he is a white American citizen.
I have given the issue some very careful thought. In the end, I am left satisfied that the father thinks so poorly of the mother that there is a very high risk that he would retain the boys in his care and seek to secure such a living arrangement however he could, whether by use of legal processes in other countries or simply by taking them to Africa and remaining there with them. He clearly already thinks that the family law and criminal justice systems and Court processes in this country are not to be trusted or respected. He expressly said as much many times in Court. I am satisfied that he would put his determination to have the boys in his principal care ahead of any serious consideration of the impact upon the boys of a cessation of their relationship with the mother. He clearly has the knowledge, experience and ability to take the boys to live in Africa. He plainly thinks that is an important part of the development of their character and identity.
Their understanding of their identity is important, but their identity as children of a Canadian woman from the farming plains of the Canadian west is as much a part of who these boys are as their African heritage on their father’s side. Where the father’s determination to have them live and experience their African heritage overrides an appreciation of the other parts of their identity and heritage and the emotional need for them to principally remain in their mother’s care at this stage of their lives, sadly for the father, their best interests dictate that steps be taken to minimise the risk of emotional harm to them that would be caused by removal from their mother. If and when the parents ever rebuild mutual trust and respect for each other, it will be for them then to consider whether the boys are able to travel outside of Canada to spend time in their father’s care. Otherwise, in my judgment, it will be for the father to persuade a Canadian Court, with relevant jurisdiction, that the boys can and should be permitted to travel to the USA and potentially even further abroad in his care.
The father also made submissions in anticipation of an outcome that did not meet his principal expectations. He submitted that the boys should be with him for all of their holidays if they are living with the mother in Canada. I do not accept that would be in their best interests either. I consider it is in their best interests to spend some school holiday time in the care of their mother as well.
As I have already earlier observed, the mother proposes that the boys spend time with their father for two weeks over the “Christmas period”, presumably during school holidays. She also proposes they spend time with him for two weeks during their summer holidays, increasing to three weeks in 2020. She expressly urged the Court not to permit the children to be with the father over Easter as there is, traditionally, a gathering of all of her family members at that time.

Although no evidence about the timing of the school holidays in F was adduced, I have some understanding that in North America they have only short holidays over the Christmas-New Year period which is essentially the middle of their school year and much longer school holidays (usually around two months) in Summer time, being July/August.
I am satisfied that the boys should spend two weeks of the Christmas holiday period with the father, even if that is the entire holidays at that time. The mother said nothing about wanting to reserve time with them on Christmas Day or even in alternate years. This suggests that she considered the Easter gathering a priority for her because of the Bowen family get together. I will order the boys spend the Christmas holidays each year with the father but will not order that they spend time with him over the Easter festive days. If there is any other Spring holiday period that does not coincide with Easter in any given year, they shall spend that time with him, too. As for Summer, I am satisfied that they could spend two weeks with him in the 2018 Summer holidays, increasing to three weeks in 2019 and then four weeks in 2020 and each year thereafter.
Until the parties can agree in writing otherwise, or a Canadian Court determines otherwise, the children’s time with the father should be spent in Canada and he should be restrained from taking them out of Canada due to the unacceptable risk of him not returning them to the mother there.
In addition, if the father is able to travel to Canada at other times during the year, with appropriate notice to the mother in writing (which I consider to be three weeks’ notice), the boys should be able to spend a long weekend (three nights and three days) with the father. It will be for the mother and father to agree as to whether the boys miss any day of school in order for this to take place. Otherwise, the father could simply ensure the boys are taken to school on the third day, if it is a school day.
As for communication, the boys should continue to have internet video conferencing calls with the father. However, I do not consider that three times each week should be mandated if the mother does not agree with that number. I consider three times per week, in circumstances of such high conflict, is problematic, as it has proven to be, and not in the best interests of the boys. My orders will provide for at least one video conference call per week by default but more as may be agreed by the mother and the father in writing. Also, they will provide for internet video conferencing with the father on special days such as birthdays and Father’s Day.
In addition, my orders will provide for the boys to communicate with their mother during time they are spending with the father during school holidays in reciprocal manner to the communication provided for with their father whilst in the mother’s care.
My orders will provide for the parents to communicate with each other as they may agree in writing and if they cannot agree on communication other than written communication then it shall be by email, text or normal post only.
I will also order the mother to provide the father with copies of the boys’ school reports as those are made available to her by the boys’ school or schools.
I observe that the orders I propose to make in respect of parental responsibility and living arrangements for the boys are also in accord with the submissions made to the Court on behalf of the Independent Children’s Lawyer in the case.
I will also discharge the Independent Children’s Lawyer from the time the mother and children depart from Australia for Canada.
I make the parenting Orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 November 2017.

Associate:

Date: 22 November 2017

[2017] FamCA 939

22 November 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness